Court of Appeals Opinions

Format: 07/04/2015
Format: 07/04/2015
Kim Hardy v. Tournament Players Club at Southwind, Inc. d/b/a "TPC Southwind", et al. - DISSENT
W2014-02286-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna M. Fields

I must respectfully dissent from the majority's opinion. While I agree with the majority that amendments to Tennessee Code Annotated section 50-2-101 do not govern enforcement of Section 50-2-107, I disagree with the court‟s interpretation of section 107 itself, and I further disagree with this Court's holding in Owens.

Shelby County Court of Appeals 07/02/15
Kim Hardy v. Tournament Players Club at Southwind, Inc. d/b/a "TPC Southwind", et al.
W2014-02286-COA-R9-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna M. Fields

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In March 2014, Plaintiff food server/bartender filed an action alleging, in relevant part, that Defendants violated Tennessee Code Annotated § 50-2-107 by failing to pay her and other similarly situated employees all of the gratuities that they earned. Plaintiff further alleged that Defendants caused the gratuities to be shared with non-tipped employees. The trial court dismissed Plaintiff‘s claim under § 50-2-107 upon determining that the section does not permit a private cause of action in light of amendments to § 50-2-101 in 2013. We reverse and remand for further proceedings.

Shelby County Court of Appeals 07/02/15
In re Avery B.
W2014-01974-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge William A. Peeler

This appeal arises from a custody dispute in the Juvenile Court of Tipton County. Because the order appealed from is not a final judgment, we dismiss the appeal for lack of subject matter jurisdiction.

Tipton County Court of Appeals 07/02/15
Daniel J. Velez v. Christy M. Velez
M2014-01115-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Judge Michael R. Jones

This is the second appeal arising from the parties’ divorce and post-divorce filings. In the first appeal, we affirmed the division of marital property and the parenting schedule but reversed the award of child support and remanded with instructions to impute Mother’s income based on the minimum wage. We reversed the award of alimony in solido and remanded with instructions to award Mother rehabilitative alimony in an amount and for a duration to be determined by the trial court. We also found that Mother was entitled to recover attorney’s fees incurred in the first appeal in an amount to be determined by the trial court. Prior to conducting hearings on remand, both parties filed petitions and motions with the trial court seeking additional relief in a variety of forms, including petitions to modify the parenting plan. Upon conclusion of the hearings on remand, the trial court set child support, awarded Mother rehabilitative alimony for 39 months at $800 a month, denied both parents’ petitions to modify the parenting plan, and awarded Mother $2,600 for attorney’s fees incurred in the first appeal. Finding no reversible error, we affirm the trial court in all respects.

Montgomery County Court of Appeals 06/30/15
Tonya D. Thornley v. U. S. Bank, N.A., et al.
M2014-00813-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Vanessa A. Jackson

Plaintiff appeals the dismissal of her complaint on a motion for judgment on the pleadings. The complaint stemmed from a foreclosure on plaintiff‘s home. Plaintiff claimed that the foreclosing lender had no right to enforce the deed of trust because the underlying promissory note had been "sold into a securitized trust contemporaneously with the origination of the loan." She also alleged certain irregularities in connection with the foreclosure sale. For the reasons explained below, we affirm the dismissal of the complaint.

Coffee County Court of Appeals 06/30/15
Linda J. Russell, administrator of the Estate of Milford R. Russell, Jr. v. Illinois Central Railroad Company
W2013-02453-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jerry Stokes

Linda Russell brought a Federal Employers Liability Act action against Illinois Central Railroad Company to recover for the death of her husband from throat cancer; she alleged the cancer was caused by Mr. Russell‘s exposure to carcinogens while he worked in the Illinois Central maintenance shops in Memphis, Tennessee. A jury found in her favor and awarded damages of $4,255,000.00; on Defendant‘s motion to offset the judgment in the amount of medical expenses paid on behalf of Mr. Russell, the trial court reduced the judgment to $3,335,685.00. On appeal, Illinois Central asserts the trial court erred in admitting the causation opinions of three of Plaintiff‘s medical experts; in approving the jury‘s finding of causation; in making certain evidentiary rulings prior to and during trial; and in denying Defendant‘s post-trial motions based on the statute of limitations and Plaintiff‘s counsel‘s alleged violations of pretrial rulings. In her cross appeal, Mrs. Russell appeals the reduction of the verdict. Finding no reversible error, we affirm the trial court

Shelby County Court of Appeals 06/30/15
Joe Mosley v. State of Tennessee
W2014-01307-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Commissioner Nancy Miller-Herron

Plaintiff, a former inmate with the Tennessee Department of Correction, filed suit in the Tennessee Claims Commission against the State of Tennessee for monetary damages. Plaintiff alleged that the State held him in custody longer than the term of his sentence and improperly applied certain sentence-reducing credits. He titled his cause of action as one for “negligent care, custody, and control” of which he asserted the Claims Commission had jurisdiction pursuant to Tennessee Code Annotated Section 9-8-307. The State filed a motion to dismiss, arguing that plaintiff's claim was one for the “negligent deprivation of statutory rights,” and that the relevant statutes did not provide a private right of action. The Claims Commission granted the State's motion to dismiss. Plaintiff appealed. Discerning no error, we affirm.

Court of Appeals 06/30/15
Michelle Benson Smith v. Christopher D. Smith
W2013-02095-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Daniel L. Smith

This appeal arises from a divorce proceeding. The trial court designated the mother as primary residential parent of the parties' young son in its temporary and permanent parenting plans. After a subsequent hearing, the trial court found the mother in criminal contempt of the permanent parenting plan for failing to engage in joint decision-making with Father on certain issues. The trial court fined the mother fifty dollars and ordered both parties to pay their own attorney's fees. The father appeals, raising various issues regarding the parenting plans and the contempt proceedings. We affirm.

Hardin County Court of Appeals 06/30/15
P. Michael Huddleston v. Kenneth L. Harper et al.
E2014-01174-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge David R. Duggan

P. Michael Huddleston (Plaintiff) brought this action against his former business partner, Kenneth L. Harper, and also against Jerry L. Hurst, the person to whom Plaintiff sold his one-half interest in the partnership. Plaintiff alleged that the primary asset of the partnership is a large building in Maryville, and that Defendants fraudulently concealed the fact that partnership had filed an insurance claim for damage to the buildings roof. The insurance claim was an asset that turned out to be worth over one million dollars. The insurance company paid this amount to the partnership shortly after Plaintiff sold his interest. Plaintiff claimed that Defendants fraudulently represented that the value of the building was about a million dollars less than its actual value because of the damage to the roof. As a consequence, Plaintiff alleged that he was fraudulently induced to sell his one-half interest for substantially less than its actual value. Plaintiff also alleged that partner Harper fraudulently endorsed Plaintiff's name to a check from the insurance company without his permission, and that the Defendants committed promissory fraud by inducing Plaintiff to endorse a second insurance check with the promise “to make things right with” him.

Blount County Court of Appeals 06/30/15
Stuart H. Kaplow, et al. v. City of Gatlinburg Board of Adjustments and Appeals, et al.
E2014-00347-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex Henry Ogle

Housing units belonging to the property owners were cited by a city official for condemnation. The property owners appealed to the city’s Board of Adjustments and Appeals. After the board agreed with the city official and condemned the property, the property owners filed a petition for common law writ of certiorari seeking judicial review of the board’s decision. The trial court determined that the decision of the board was supported by material evidence and was neither arbitrary nor capricious. The property owners appeal. We affirm.

Sevier County Court of Appeals 06/30/15
Andrew R. Lunn, DDS v. Carole Michelle Lunn - Concurring and Dissenting
E2014-00865-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

I concur in the majority’s opinion with the sole exception that I cannot agree with the majority that the amount of alimony in futuro awarded to Wife should be increased from $500 per month after eight years to $2,288. I agree with the majority that the transitional alimony must be changed to another type of alimony to comply with Tennessee law, and that the only other type that fits under the statutes is alimony in futuro. My only disagreement is with the majority’s sua sponte changing of the amount ordered by the trial court.

Hamilton County Court of Appeals 06/29/15
Andrew R. Lunn, DDS v. Carole Michelle Lunn
E2014-00865-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jeffrey M. Atherton

The appeal in this divorce litigation presents issues regarding proper valuation of the parties' business, proper division of marital assets, alimony, child support, attorney's fees, and court costs. The parties were married for seventeen years, with three children being born of the marriage. The husband is a dentist, who started his own practice during the parties' marriage. Much of the testimony at trial focused upon the proper value to be assigned to this marital asset. The trial court adopted the value assigned by the wife's expert of $430,376. The trial court then ordered that all of the marital assets be divided equally between the parties. Further, the trial court awarded Wife rehabilitative alimony, transitional alimony, and alimony in solido. The husband has appealed the trial court's final judgment. We reverse the trial court's valuation of the dental practice, and we remand this matter to the trial court for a proper determination of the value of such asset. The trial court will also be required to redistribute the parties' marital assets as necessary, in accordance with its redetermined valuation of this asset, in order to effectuate the trial court's decision to make an equal division of marital property between the parties.

Hamilton County Court of Appeals 06/29/15
Richard Muller v. Dennis Higgins, et al.
E2014-00708-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald P. Harris

This is a personal injury action in which Plaintiff sued Defendant for injuries he sustained as a result of a two-vehicle accident. The jury allocated fifty percent of the fault for the accident to each party, and the trial court entered judgment on the jury's verdict. On appeal, Plaintiff argues that the jury was not fair and impartial and that the evidence presented does not support the jury's verdict. We affirm.

Hamilton County Court of Appeals 06/29/15
Tonya Newcomb v. State of Tennessee
M2014-00804-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner Robert N. Hibbett

Plaintiff fell down a set of steps while entering a building owned and operated by the State of Tennessee. She filed a claim with the Claims Commission alleging that the stairs were a dangerous condition because the handrail was too low and the steps were not covered with non-skid material. At trial, Plaintiff and her daughter testified about Plaintiff’s fall and the resulting injuries. Plaintiff also introduced into evidence photographs of repairs made to the stairs after her fall. The State called two witnesses, the head facilities administrator and a member of her staff, who testified that they were responsible for the maintenance of the steps. Both testified that they did not know of any prior incidents involving the steps. In his written order, the Commissioner found that both Plaintiff and the State’s witnesses were credible; however, he dismissed Plaintiff’s case because she failed to prove that a dangerous condition existed or that, if such condition existed, the State had notice of a dangerous condition. The Commissioner also concluded that Rule 407 of the Tennessee Rules of Evidence prohibited him from considering Plaintiff’s photographs as evidence of the State’s liability. Plaintiff appealed. We affirm.

Court of Appeals 06/26/15
In re Jacob B.
M2014-00805-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Tiffany Gipson

This is an appeal from the trial court’s denial of Father’s petition to modify custody. Following a one-day trial, the court found that Father had failed to demonstrate a material change in circumstance as necessary for either a change in primary residential parent or parenting time. Because we find that the evidence preponderates against the trial court’s finding of no material change in circumstance for purposes of modification of residential parenting time, we vacate and remand for further proceedings consistent with this opinion.

Jackson County Court of Appeals 06/26/15
Michael Todd Culver v. Lisa Culver
E2014-01201-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jacqueline S. Bolton

This appeal arises from a divorce. After 20 years of marriage, Michael Todd Culver (“Husband”) sued Lisa Culver (“Wife”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”). After a trial, the Trial Court divided the marital estate and granted the parties a divorce. Wife appeals to this Court. We hold, inter alia, that the Trial Court did not commit reversible error in its valuation or division of the marital estate, or in declining to find Husband in contempt. We hold further that the Trial Court erred in adding $500 per month in alleged rental income to Wife’s income for child support purposes. We, therefore, reverse that portion of the Trial Court’s judgment and remand for a new calculation of child support. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

Hamilton County Court of Appeals 06/26/15
Jennifer Parrott v. Lawrence County Animal Welfare League, Inc., et al
M2014-01241-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jim T. Hamilton


The owner of approximately forty dogs filed a complaint against an animal welfare league for improperly removing the dogs from her property. She later added Lawrence County as a defendant. Lawrence County filed a motion to dismiss the owner’s complaint on the basis of governmental immunity. The trial court granted the county’s motion, and the owner appealed. Tennessee law requires that pleadings alleging negligence by a governmental entity overtly state that the tort was committed by an employee or employees of the governmental entity within the scope of his/her or their employment. The dog owner failed to include this assertion in any of her pleadings. As a result, we affirm the trial court’s judgment granting the county’s motion to dismiss the dog owner’s claims against it.

Lawrence County Court of Appeals 06/25/15
State of Tennessee Ex Rel. Tennessee Department of Transportation v. William Ernest Jones, Sr., et al.
M2014-00151-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert L. Jones

This appeal concerns the measure of incidental damages in a condemnation proceeding. The State appeals the trial court’s denial of its motions for directed verdict and remittitur of incidental damages. Taking the strongest legitimate view of the evidence offered by the landowners, we find that the award of incidental damages was properly supported, and therefore, we affirm.

Lawrence County Court of Appeals 06/25/15
In re Conservatorship For Mary N. Ayers
M2014-01522-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Nolan Goolsby

This appeal arises from a conservatorship proceeding in the Putnam County Probate Court.  The trial court appointed co-conservators over the Respondent’s property and person.  We vacate the trial court’s final order and remand for the entry of an order that complies with Tennessee Rule of Civil Procedure 52.01.

Putnam County Court of Appeals 06/25/15
State of Tennessee Ex Rel Landle Byrge, et al. v. Nicholas Jay Yeager
E2014-01996-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Don R. Ash

The petitioners filed this action seeking to remove the respondent from the position of county law director of Anderson County pursuant to Tennessee's ouster law, found at Tennessee Code Annotated section 8-47-101. The respondent filed a motion to dismiss, which the trial court granted after concluding that the position of county law director is not a public office subject to the ouster law. On appeal, the petitioners argue that the trial court erred in concluding that the position of county law director is not a public office. Because the county law director is subject to oversight by an advisory committee that may remove him or her at any time with the subsequent approval of the county legislature, we affirm the ruling of the trial court.

Anderson County Court of Appeals 06/25/15
In re Gabriel V.
M2014-01500-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sophia Brown Crawford

Mother and Father were married to other people when the Child was conceived. Mother divorced her husband, but Father returned to his wife and children after the Child was born. Father initiated court proceedings in an effort to be named the Child’s primary residential parent and to obtain parenting time. The court performed a best interest analysis and determined that Mother was better suited to be named the primary residential parent. By the time of trial, Mother was living in California, and Father was living in Tennessee. The court awarded Father parenting time during the majority of the summer and shorter periods throughout the year, for a total of about ninety-six days per year. Father appealed, contending the court erred in its best interest analysis and in failing to award him more parenting time with the Child. Father also challenged the court’s calculation of child support and credits to which he is entitled. We affirm the trial court’s judgment in all regards except for its calculation of child support and credits to which Father is entitled. The case is remanded for a recalculation of Father’s child support obligation and arrearage, as set forth herein.

Davidson County Court of Appeals 06/24/15
Alex Friedmann, et al. v. Marshall County, TN, et al. - Concurring
M2014-01413-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor J. B. Cox

I concur with the majority Opinion’s ruling, but I write separately to address only the attorneys’ fee issue. Over the years, two schools of thought apparently developed regarding the “willfulness” standard under the Public Records Act attorneys’ fee provision. Tenn. Code Ann. § 10-7-505(g). One school of thought adopted the Black’s Law Dictionary definition of bad faith, which includes phrases like “the conscious doing of a wrong,” “dishonest purpose,” and “moral obliquity.” See Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, No. 01-A01-9104-CH-00150, 1992 WL 12217, at *8 (Tenn. Ct. App. Jan. 29, 1992) (no. perm. app. filed) (holding that Section 10-7-505(g)’s “knowing and willful” standard is synonymous with “bad faith,” without defining “bad faith”); Contemporary Media v. City of Memphis, No. 02A01-9807-CH-00211, 1999 WL 292264, at *4-5 (Tenn. Ct. App. May 11, 1999) (citing Capital Case Res. Ctr. but defining “bad faith” by quoting the Black’s Law Dictionary definition of the term); Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App. 1999).

Marshall County Court of Appeals 06/24/15
Alex Friedmann, et al. v. Marshall County, TN, et al.
M2014-01413-COA-R3-CV
Authoring Judge: Judge Arnold B. Golding
Trial Court Judge: Chancellor J. B. Cox

The trial court ordered the Marshall County Sheriff’s Office to produce the public records requested by Appellant but declined to award Appellant any attorneys’ fees. On appeal, we conclude that the trial court abused its discretion in declining to award attorneys’ fees. Accordingly, we reverse and remand the case to the trial court for the entry of an order awarding Appellant reasonable attorneys’ fees and costs pursuant to Tennessee Code Annotated § 10-7-505(g).

Marshall County Court of Appeals 06/24/15
Mary V. Williams v. Gibson County, Tennessee
W2014-01599-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Clayburn Peeples

Plaintiff filed suit against defendant county alleging, inter alia, racial discrimination and retaliatory discharge. Defendant filed a motion to dismiss plaintiff’s claims, which motion the trial court granted in part and denied in part. Defendant subsequently filed a motion for summary judgment as to plaintiff’s remaining claims. The trial court granted summary judgment in favor of defendant, disposing of the remainder of plaintiff’s claims. Plaintiff appeals. Due to significant procedural shortcomings in plaintiff’s appellate brief, we are unable to reach the merits of her appeal. We therefore affirm.

Gibson County Court of Appeals 06/24/15
Robert W. Mills v. Nita D. Mills, et al.
W2014-00855-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Arnold B. Goldin

This case involves various causes of action related to the administration of an estate, specifically, the executor‘s action in failing to fund a residuary trust. The trial court granted summary judgment on the grounds that no assets remained in the estate to fund the residuary trust, the expiration of the statute of limitations, and laches. Although we rely on different grounds, we affirm the trial court‘s order granting summary judgment and dismissing the complaint.

Shelby County Court of Appeals 06/24/15